When HR managers do internal investigations, one of the most common mistakes is to wind up the final report with a legal determination, says attorney Jennifer Brown Shaw. “Don’t do that,” she urges. “Just find out and report what happened.”
In California, for example, Shaw says, a legal conclusion reached in your investigation report is tantamount to an admission of guilt.
Shaw is a partner in the law firm of Shaw Valenza LLP in Sacramento. Her comments came during the Society for Human Resource Management Annual Conference and Exposition, held recently in San Diego.
How May Employers Be Put on Notice?
There are many ways in which employers may become aware of situations that may require investigations, Shaw says. For example:
- Anonymous letters
- E-mail messages
- Internal complaint (written or verbal)
- Hotlines
- Exit interview
- Informal reports (I heard, There’s a rumor, I only know by e-mail)
- Complaint letter
- State/EEOC complaint (You can’t say, “The state will investigate so I don’t have to,” says Shaw.)
- Lawsuit
- Whistleblower
- Other (Shaw says one time she asked a worker “How are you doing?” and the response was, “OK … except the boss is stealing from the company and he wants me to cover it up.”
Once your employer is on notice of a complaint of inappropriate work-related conduct, you have a legal obligation to respond, and take “prompt” and “effective” corrective action, says. Often that will require a “good faith” investigation to determine what really occurred (but, again, not whether it was illegal).
What Are the Potential Topics for Investigation?
The most common topics for investigations are:
- EEO issues
- Leaves of absence
- Safety violations
- Other workplace misconduct (theft, drug use, workplace violence, etc.)
When Retaliation Is a Factor in an Investigation
Shaw suggests that retaliation can be the focus of the investigation (“I’ve been retaliated against for making a complaint to EEOC.”), or retaliation can result from an investigation (“Since the investigation, my supervisor won’t speak to me.”) HR managers have to monitor this carefully.
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What Is the Focus of the Investigation?
“Always keep the focus of your investigations on what happened,” says Shaw. You want to know:
- Whether the conduct alleged occurred.
- Whether the conduct alleged violated the employer’s policy.
You DO NOT want to make a legal determination, says Shaw. Your job is not to determine whether the conduct alleged violated the law.
Opposing attorneys like to see the word “violated” in reports, Shaw says.
Shaw also suggests that if you use an outsider for the investigation, you not have that person make a determination about whether a policy was violated. Outsiders don’t know how you handle discipline and what you’ve done in similar cases in the past.
What About Off-the-Record Complaints?
There is no such thing as an “off-the-record” complaint, says Shaw. The law requires a prompt and effective investigation of any EEO-related issue to end the current problem and deter future inappropriate conduct.
Who Can Legally Conduct Investigations?
Check state law, Shaw says. In California, for example, your internal HR staff may conduct investigations, but if you go outside for help, you must hire a licensed private investigator or an attorney.
If you use outsiders, Shaw says, don’t let them make a determination on policy violations. Outsiders don’t know how you have interpreted your policies in the past and they don’t know how you do business.
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When Is an Employee Entitled to Representation?
Only union employees have a right to have a co-worker sit in on “investigative” interviews (when they reasonably believe they might be subject to discipline), says Shaw, although this may change soon. Peace officers have additional rights to representation, she adds.
The role of the representative is to “clarify.” The representative cannot interfere in the interview, and must maintain confidentiality.
In tomorrow’s Advisor, we’ll get Shaw’s 10 steps for conducting an investigation, and we’ll take a look at a unique checklist-based audit program.